SUBE SINGH Vs. SHANTI DEVI

JUDGEMENT

(1.) The challenge in this petition is to the order dated 17th January, 2013 passed by the Additional Civil Judge (Senior Division), Hisar directing plaintiff Nos.1 and 2 and defendant No.1 to appear before the Forensic Science Laboratory, Maduban, Karnal to give blood sample for DNA profiling test at the expense of the plaintiffs. The parties were directed to appear on 20th February, 2013 for drawing blood sample. The dispute in the suit is with respect to rights and shares in the suit property. The suit instituted by the petitioner is for declaration of ownership and possession to the extent indicated in the head note to the plaint. The family pedigree table is found at page 25 of the paper book. Plaintiff No.1 Shanti Devi asserts that she and her late sister Kesho were born from the marriage of Birsala @ Risala and Nikia Devi. After the death of Birsala @ Risala their mother Nikia Devi married Vijay Singh @Baje Singh brother of Birsala. Indisputably, from the second marriage, Sube Singh/defendant No.1 and late Harish Chander were born.

(2.) Therefore, Shanti Devi, late Kesho, Sube Singh and late Harish Chander were born from the same womb of Nikia Devi. It is pleaded that the contesting parties are step brothers and sisters.

(3.) Resisting the suit Sube Singh has refuted that Nikia Devi is the common mother alleging that she never married Birsala @ Risala and plaintiff No.1 Shanti Devi and Kesho (deceased) were not born from the womb of Nikia Devi and there is no commonality of blood between them. When plea of denial was entered by the defendant in the suit, plaintiff No.1 moved an application praying that DNA profile test be conducted between the parties for removal of doubt as to maternity. The application was seriously contested as being not maintainable; there is no provision in the CPC to order such test against defendant's wishes and for these reasons dismissal of the application was prayed for.